Citation Nr: 1220278
Decision Date: 06/08/12 Archive Date: 06/20/12
DOCKET NO. 09-26 427 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to a rating in excess of 10 percent for sebaceous cysts, claimed as cysts all over the body.
REPRESENTATION
Appellant represented by: Tennessee Department of Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Donna D. Ebaugh, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1971 to November 1978.
These matters come before the Board of Veterans' Appeals (BVA or Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. This case was previously Remanded by the Board in November 2010 and is now ready for further disposition.
The Veteran was initially granted service connection for his disability in September 1979 but the disability was rated as noncompensable. Then, in September 2007 he was assigned a 10 percent rating for his sebaceous cyst disability. In October 2007, he submitted additional lay evidence in support of his claim. Specifically, he indicated that he had surgery for his cyst disability and had new cysts which required removal. As these allegations were new to the claim and material to a disability rating, the Board finds the lay evidence was both new and material. 38 C.F.R. § 3.156(b). Following correspondence from the RO in November 2007 indicating that the Veteran should clarify the purpose of his October 2007 correspondence, the Veteran filed a statement in support of his claim in November 2007. The Veteran's November 2007 statement clarified that he desired a rating in excess of 10 percent for his disability. As such, it stands to reason that the appropriate period on appeal is the period since the Veteran's claim for increase dated in December 2006. See Buie v. Shinseki, 24 Vet. App. 242 (2010) (held that that a regional office decision becomes final "only after the period for appeal has run," and that "[a]ny interim submissions before finality must be considered by the VA as part of the original claim.").
The Veteran testified before the undersigned in June 2010. A transcript of the hearing is of record.
FINDING OF FACT
Throughout the rating period on appeal, the Veteran's sebaceous cyst disability, including scars, has been productive of subjective complaints of pain and itching; however, none of his scars were shown to be: visible on the head, face, or neck; result in an area or areas exceeding 6 square inches (39 sq. cm.); cause limitation of motion; unstable; or productive of pain on examination.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for a sebaceous cyst disability have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, DCs 7800, 7801, 7802, 7803, 7804, 7805 (2002) (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).
Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id.
Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been satisfied, albeit subsequent to the unfavorable decision on appeal. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation."
Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the first letter sent to the Veteran in March 2007, indicated that the Veteran's claim was an initial claim for service connection and not a claim for an increased rating. However, another letter sent in December 2007 addressed the notification requirements associated with an increased rating. Both letters addressed the Dingess requirements. Therefore, he was "provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. The claim was readjudicated in August 2008 and June 2009. Consequently, the Board finds that the duty to notify has been satisfied.
Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011).
In compliance with its duty to assist, the RO associated the Veteran's service treatment records and VA outpatient treatment records with the claims file. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.
As noted in the November 2010 Remand, the Board acknowledges that the Veteran has reported that he is in receipt of Social Security Disability and that those records have not been obtained. However, it was also observed that the Veteran did not report to VA that there are SSA records that would be pertinent to his claim. His September 2005 statement indicated he filed for SSA benefits related to the residuals of a fracture of the left lower extremity. He made no reference to his sebaceous cysts being a part of his claim. The Board, therefore, concludes that the record does not establish a reasonable possibility that there are such records that are relevant to this claim, and further development is not warranted. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010).
Next, the Veteran was afforded VA examinations in August 2007 and February 2012. The Board acknowledges that the claims file was not available for review at the time of the August 2007 examination. Such is not necessarily fatal to determining the adequacy of the examination. Indeed, in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. The Court indicated that the claims file "is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a decision on a claim." Id. In this regard, the VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, performed a physical examination, and provided the information necessary to evaluate his disability under the applicable rating criteria. Additionally, the Board finds that the February 2012 VA examination, undertaken in accordance with the November 2010 Remand, complied with the Remand directives and was adequate as the examiner reviewed the claims file, conducted a thorough examination of the Veteran and obtained a medical history and report of current symptoms from the Veteran.
The Board acknowledges that the 2012 examination determined that the Veteran had no visible scars on his head. He understandably did not comment on whether any scars of the head were unstable. However, the finding that there were no visible scars of the head seems to be contrary to the Veteran's assertion that he has two scars on his head. Nevertheless, even though the Veteran has provided competent testimony that he has places on his head where his sebaceous cysts were removed and that those places itch regularly, the Board finds the examination was adequate as the VA examiner reported objective findings regarding visible scars and skin disorders. The Board notes that the United States Court of Appeals for Veterans Claims has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order").
The Veteran was also afforded the opportunity to testify before the Board in June 2010. In Bryant v. Shinseki, 23 Vet.App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2011) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.
Here, during the hearing, the undersigned essentially elicited testimony necessary to determine the nature of the Veteran's disability. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Transcript (T) page 4. Specifically, the undersigned asked the Veteran to explain how his scars were unstable. Id. The undersigned also clarified what the Veteran was claiming with regard to his use of the term "scar." T. page 7. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.
After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Based on the foregoing, the Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).
Increased Rating
The Veteran was granted service connection for sebaceous cyst disability and a 10 percent disability rating was assigned, effective in December 2006. The Veteran contends that his disability warrants a higher rating. His disability has been rated under Diagnostic Code 7819-7804. Diagnostic Code 7819 applies to benign skin neoplasms and instructs the rater to rate as disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805) or impairment of function.
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2011). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2011).
The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2011). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." See Hart v. Mansfield, 21 Vet. App. 505 (2007). A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2011). Here, the disability has not significantly changed and a uniform evaluation is warranted.
As noted above, during the pendency of the Veteran's appeal, the regulations pertaining to the evaluation of skin disabilities was amended. See 73 Fed. Reg. 54708 (effective Sept. 23, 2008). However, as set forth in the Federal Register, the revised criteria apply to all applications for benefits received by VA on or after the effective date of October 23, 2008. 73 Fed. Reg. 54,710 (Sept. 23, 2008). There is no evidence of record indicating that the Veteran has expressed a desire to have his claim considered under the new criteria. Therefore, the Board will consider the Veteran's claim under the criteria in place at the time the Veteran filed his claim.
Ratings under Diagnostic Code 7800 are warranted for disfigurement of the head, neck or face as follows. With one characteristic of disfigurement the disability will be rated at 10 percent. With visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement the disability will be rated at 30 percent. With visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement the disability will be rated at 50 percent. With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips, or; with six or more characteristics of disfigurement will be rated as 80 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7800.
Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118 are: Scar is 5 or more inches (13 or more cm.) in length. Scar is at least one-quarter inch (0.6 cm.) wide at the widest part. Surface contour of scar is elevated or depressed on palpation. Scar is adherent to underlying tissue. Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.). Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.).
Note (2) to Diagnostic Code 7800 provides that tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3) provides that unretouched color photographs are to be taken into consideration when rating under these criteria. 38 C.F.R. § 4.118.
Scars, other than on the head, face, or neck, that are deep or that cause limited motion are rated under 38 C.F.R. § 4.118 , Diagnostic Code (DC) 7801. Under this code, a 10 percent disability rating is warranted for a scar or scars with an area or areas exceeding 6 square inches (39 square centimeters (cm)). A 20 percent disability rating is warranted for a scar or scars with an area or areas exceeding 12 square inches (77 square cm). A 30 percent disability rating is warranted for a scar or scars with an area or areas exceeding 72 square inches (465 square cm). A maximum 40 percent disability rating is warranted for a scar or scars with an area or areas exceeding 144 square inches (929 square cm). 38 C.F.R. § 4.118 , Diagnostic Code 7801.
There are two notes following Diagnostic Code 7801. Note 1 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note 2 provides that a deep scar is one associated with soft tissue damage. 38 C.F.R. § 4.118 , Diagnostic Code 7801.
Scars, other than on the head, face, or neck, that are superficial and that do not cause limited motion are rated under Diagnostic Code 7802. Under this code, a 10 percent disability rating is warranted for a scar or scars with an area or areas exceeding 144 square inches (929 square cm). 38 C.F.R. § 4.118 , Diagnostic Code 7802. Note 2 following this diagnostic code provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 , Diagnostic Code 7802.
A 10 percent evaluation is authorized for superficial, unstable scars. 38 C.F.R. § 4.118 , Diagnostic Code 7803. A note following this diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803.
A 10 percent evaluation is authorized for superficial scars that are painful on examination. 38 C.F.R. § 4.118 , Diagnostic Code 7804.
Scars may also be rated based on the limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Codes 7805.
For the following reasons, the Board finds that a rating in excess of 10 percent for the entire period on appeal, is not warranted.
First, the Veteran does not have disfigurement of the head, face, or neck as a result of his sebaceous cyst disability. The Board acknowledges that the Veteran has competently testified that he has two places on his head, one on each side of his upper skull area, that cause him discomfort that are associated with excision of his cyst disability. T. page 3. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a veteran is competent to report symptoms as they come to him through his senses). However, the February 2012 VA examination specifically found that there was no disfigurement of the head, face, or neck. The February 2012 VA examination also explicitly indicated that no scar was evident for the right ear lobe despite excision of a cyst from the right ear lobe. The August 2007 VA examination report similarly noted the excision from the ear lobe but did not note any resulting scarring. There are no treatment records that document scars of the neck, head, or face either. Thus, as no scars on the head were visible to the VA examiners, and the Veteran's own statements do not support a finding of any of the eight characteristics of disfigurement outlined in Note 1 above, the Board finds that a separate compensable rating is not warranted under DC 7800.
A higher rating is also not warranted under Diagnostic Code 7801. The Veteran's scars have not been identified as "deep" as defined by Note 2 of DC 7801. The August 2007 VA examination indicated that the Veteran had no visible rash or scarring and the Veteran did not report any rash at that time. The examiner noted one pea-sized lesion on the right inguinal region measuring approximately 0.5cm -1 cm. Additionally, the February 2012 VA examination report noted a scar on the posterior trunk measuring 4 cm in length.
Next, the Board has considered whether separate compensable ratings are warranted under Diagnostic Code 7802 for scars that are superficial. The only scars noted at the VA examinations measured approximately 0.5cm -1 cm and 4 cm. Separate ratings are not warranted as the scars do not have an area of at least 144 square inches.
Further consideration has been given to whether separate compensable ratings are warranted for superficial and unstable scars under DC 7803 but finds they are not. The Board has considered the Veteran's testimony that he has unstable scars on the top of his head. T. pages 3-4. He reported that they start itching unexpectedly approximately two or three times per day. He is competent to state such. However, as neither VA examination even identified the Veteran as having scars that were visible on examination, and there are no treatment records documenting the Veteran's complaints, his assertions are not deemed credible. Moreover, even if his description of the scars becoming periodically itchy was found credible, the Board does not find that a scar that itches meets the definition of an unstable scar. Note 2 to DC 7803 provides that an unstable scar is one that loses skin covering. There is no indication that the Veteran's scars on his head lose skin covering. VA outpatient treatment records have not demonstrated that any of the Veteran's scars, including places on his head that itch, have any lost skin covering. Further, the February 2012 VA examiner inquired as to whether the Veteran had used any medication to treat his scars and the Veteran indicated that he had not. Similarly, at his hearing before the Board, when discussing pain and itching associated with his scars, the Veteran reported that although he explains his symptoms to his primary care physician, he had not sought from her, nor had she recommended to him, any medications or creams for symptoms related to the areas of excision. T. page 5. The Board finds that the lack of use of medications or creams for treatment of the symptoms lends more credence to the February 2012 VA examiner's findings that there were no unstable scars. Therefore, separate compensable ratings for unstable scars are not warranted.
The Board has also considered whether the Veteran is entitled to separate compensable ratings for superficial and unstable scars other than on his head, but finds that such ratings are not warranted. The Veteran has not alleged that he has other superficial and unstable scars other than the scars on his head. Moreover, the February 2012 VA examiner specifically found that the scars on the Veteran's trunk and extremities are not unstable.
There is also no evidence to support the assignment of a separate compensable rating for superficial and painful scars. He has already been assigned a 10 percent rating for the scar on his groin, under DC 7804. Higher ratings are not provided under DC 7804.
The Board has considered whether the Veteran is entitled to separate compensable ratings for superficial and painful scars other than the scar on his groin. The Veteran testified that he has four scars that are painful, including two scars on his head, one on his back, and one on his buttocks. T. page 4. He has indicated that the scars on his buttocks and back cause him discomfort and make him squirm. Id. While the Board finds the Veteran is competent to report his symptoms, they are again not deemed credible. There is simply no objective evidence to support his assertion. This is particularly troubling because it was specifically noted by the February 2012 VA examiner that the Veteran did not have pain on examination of the scars on his trunk. There are also no references to the Veteran having tender scars or cysts in the contemporaneous treatment notes, even though he has been seen for a myriad of other health complaints. Indeed, the Board observes that the treatment notes that identify or address the Veteran's cysts or scars are absent any references to pain. If the Veteran experiences pain in the area of the scars/cysts, he has provided no reasonable explanation as to why he has never complained of the pain at any other time than his personal hearings. Such weighs heavily against the veracity of his assertions.
Lastly, the Board has considered whether the Veteran is entitled to a separate compensable rating for limitation of function. In his November 2007 statement, the Veteran indicated that his groin cyst keeps him sore when he bends. He has since had the cyst removed and has been granted a compensable rating for pain for that cyst. The Board acknowledges that he testified that his scars on his back and bottom cause him to squirm and move around at times while sitting. T. page 4. Notably, he has not asserted that he is unable to sit, or otherwise function, due to his scars, at any time. Similarly, the February 2012 VA examiner indicated that the Veteran's scars do not affect his ability to function. The August 2007 VA examiner did not note any findings regarding limitation of function due to scarring. Based on the foregoing, a separate compensable rating is not warranted under DC 7805.
Based on the foregoing, a higher rating is not warranted for the Veteran's scars associated with his sebaceous cyst disability.
Finally, the disabilities do not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are present, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.
In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's skin disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111.
Lastly, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
ORDER
A rating in excess of 10 percent for sebaceous cysts, claimed as cysts all over the body, is denied.
____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs